The Western Right: February 2022 Judiciary News

One year down, three to go.

Supreme Court:

Breyer: Justice Breyer will retire from the Supreme Court at the end of the current term. The news leaked before it was announced. Breyer was reportedly upset by the leak.

Short List: David Lat identifies the leading candidates to fill the vacancy as Ketanji Brown Jackson (DC Circuit), Leondra Kruger (CA Supreme Court), and J. Michelle Childs (D-SC). Ed Whelan profiles Jackson and Kruger. Whelan notes that an analysis found Jackson's writing to be of poor quality.

Vaccine Mandate: The Supreme Court enjoined Biden's vaccine mandate for employers by a 6-3 vote in the case NFIB v. Department of Labor. However, it allowed a mandate for most healthcare workers by a 5-4 vote, with Roberts and Kavanaugh joining the liberals.

Vaccine Mandate: The ruling was foreshadowed by arguments that appeared to go badly for the Biden administration. The Advisory Opinions podcast analyzed the arguments and the opinions.

Sotomayor: Justice Sotomayor made a number of wildly false statements during arguments over Biden's vaccine mandate. She claimed "We have hospitals that are almost at full capacity with people severely ill on ventilators. We have over 100,000 children, which we've never had before, in serious condition, many on ventilators". The actual number is around 3000.

Masks: NPR reporter Nina Totenberg claimed that Justice Sotomayor has attended hearings remotely due to Justice Gorsuch refusing a request by Justice Roberts to wear masks. Sotomayor, Gorsuch, and Roberts released statements refuting the story, but some leftists refused to believe them.

Affirmative Action: The Supreme Court will hear challenges to affirmative action programs at Harvard and University of North Carolina. It seems likely that the court will overturn these programs, but it may be difficult to find a remedy that admissions offices can't work around.

Roberts: The left is upset about a new poll showing Chief Justice John Roberts is the most popular leader of the federal government, with 60% approval.

Nominations, Hearings, Confirmations:

First year: Ed Whelan shows that Ron Klain's claim that "@POTUS has now named more appellate court judges his first year in office than any President.” is not quite accurate.

Diversity: President Biden has nominated a large number of black women to the appeals courts. They are overrepresented about 20 times compared to their proportion among American lawyers.

6th Circuit: Biden nominee Andre Mathis had his drivers license suspended three times, in 2008 and twice in 2010. Senators Haggerty and Blackburn slammed the nomination, with Blackburn saying, "Joe Biden nominated someone with a rap sheet to be a federal judge in Tennessee ... Mr. Mathis's rap sheet shows that he believes himself to be above the law, just like the President who nominated him."

11th Circuit: SPLC lawyer and 11th Circuit nominee Nancy Abudu attacked common election security measures in 2011:

Obviously, we do a lot when it comes to voter suppression, which includes five priority areas: photo ID, proof of citizenship, restrictions we see when it comes to registration … early voting as well as absentee voting and the restrictions we see when it comes to criminal convictions.

D-PR: A "bipartisan" panel led by Puerto Rico Governor Pedro Pierluisi (D) and Resident Commissioner Jenniffer González-Colón (R), who are both part of the pro-statehood New Progressive Party (PNP) recommended Veronica Ferraiuoli Hornedo, an aide to González, for a federal judgeship. However, the White House is reportedly considering a pro-independence candidate, Sulay Rios-Fuentes, to the consternation of the PNP officials.

Nominations:

TBD

The Federal Judiciary:

6th Circuit: Judge Gilbert Stroud Merritt Jr. died on January 17 at age 86. He was appointed by President Carter in 1977 and took senior status in 2001 on his 65th birthday. He was born, took senior status, and died on the same date.

9th Circuit: Judge Lawrence VanDyke wrote a unanimous panel opinion reversed a district court ruling upholding a temporary closure of gun stores during the pandemic. More notably, he predicted the ruling would go en banc and wrote a snarky concurrence satirizing the reasoning the leftists on the court use to uphold gun control. Read the footnotes!

11th Circuit: Chief judge William Pryor was cleared after an investigation by Second Circuit chief judge Debra Ann Livingston. He had been accused of hiring a clerk who made racist remarks. However, she had been framed by former coworkers at Turning Point USA.

Vacancy Declarations: There are now 117 current and future judicial vacancies. New vacancies over the past month are listed below.

WD-WA: Ricardo Martinez (W) TBD (senior)

WD-WA: Richard Jones (W) TBD (senior)
SD-OH: Timothy Black (Obama) 5/18 (senior)

D-MA: Timothy Hillman (Obama) TBD (senior)

9th Circuit: Margaret McKeown (Clinton) TBD (senior)

5th Circuit: Gregg Costa (Obama) 8/5 (resigned)

ED-MO: Rodney Sippel (Clinton) TBD (senior)

ND-CA: Edward Chen (Obama) 5/17 (senior)
CD-CA: John Kronstadt (Obama) 4/1 (senior)

ED-LA: Martin Feldman (Reagan) 1/26 (death)

1st Circuit: Jeffrey Howard (W) 3/31 (senior)
ND-OK: Claire Eagan (W) 10/1 (senior)
9th Circuit: Andrew Hurwitz (Obama) TBD (senior)

Supreme Court: Stephen Breyer (Clinton) TBD (retired)

State Supreme Courts:

Maryland: The Maryland Court of Appeals will see two vacancies soon. Judge Robert McDonald hits the age limit of 70 on February 23, and Chief Judge Joseph Getty will leave on April 14. The Appellate Courts Judicial Nominating Commission nominated six candidates for McDonald's seat, and three for Getty's seat. Governor Larry Hogan will appoint the new judges.

New Jersey: New Jersey Supreme Court Justice Faustino J. Fernandez-Vina will retire on February 15, upon reaching the age limit of 70. He was appointed by Chris Christie in 2013. Meanwhile, Governor Phil Murphy renominated Rachel Wainer Apter to an open seat on the court. She was first nominated on March 15, but state senator Holly Schepisi (R) is holding up the nomination. It is possible that both vacancies could be filled if Murphy agrees to appoint an R to replace Fernandez-Vina.

Oregon: Governor Kate Brown appointed Court of Appeals judge Roger J. DeHoog to the Oregon Supreme Court. He is 56 and Asian. He replaces Justice Lynn Nakamoto, who retired on December 31.

Tennessee: Governor Bill Lee appointed Associate Solicitor General Sarah Campbell for the Tennessee Supreme Court seat open due to the death of Justice Cornelia Clark. Campbell has a JD from Duke, clerked for William Pryor (11th Circuit) and Justice Samuel Alito (2011-12), and joined the AG's office in 2015. The court now has 4 R and 1 D appointees.

Texas: Appointed incumbent Evan Young is running for election to the Texas Supreme Court. He clerked for Scalia on the Supreme Court. He is being challenged by 5th District Court of Appeals judge David Schenck in the Republican primary on March 1. Schenk is focusing his campaign on ethics issues.

Resources:

Blogs: Bench Memos (NR) The Vetting Room How Appealing

Twitter: FedJudges Senate Cloakroom